Exhibit 99.(h)(1)
XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY INCOME FUND
________________ Common Shares of Beneficial Interest
$20.00 per Share
FORM OF UNDERWRITING AGREEMENT
Dated: [___________], 2007
TABLE OF CONTENTS
Page
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SECTION 1. Representations and Warranties............................... 3
SECTION 2. Sale and Delivery to Underwriters; Closing................... 13
SECTION 3. Covenants of the Fund and the Advisers....................... 14
SECTION 4. Payment of Expenses.......................................... 17
SECTION 5. Conditions of Underwriters' Obligations...................... 18
SECTION 6. Indemnification.............................................. 22
SECTION 7. Contribution................................................. 25
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery............................................. 26
SECTION 9. Termination of Agreement..................................... 26
SECTION 10. Default by One or More of the Underwriters................... 27
SECTION 11. Notices...................................................... 28
SECTION 12. Parties...................................................... 28
SECTION 13. GOVERNING LAW AND TIME....................................... 28
SECTION 14. Effect of Headings........................................... 28
SECTION 15. Definitions.................................................. 28
SECTION 16. Absence of Fiduciary Relationship............................ 30
SECTION 17. Disclaimer of Liability of Trustees and Beneficiaries........ 31
EXHIBITS
Exhibit A - Initial Securities to be Sold
Exhibit B - Form of Opinion of Fund Counsel
Exhibit C - Form of Opinion of Adviser Counsel
Exhibit D - Form of Opinion of Subadviser Counsel
Exhibit E - Price-Related Information
i
XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY INCOME FUND
_____________ Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
New York, New York
[__________], 2007
Wachovia Capital Markets, LLC
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx X. Xxxxx & Co.
Banc of America Securities LLC
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
Xxxxxxx, Xxxxxx & Co.
Xxxxxx, Xxxxx Xxxxx, Incorporated
H&R Block Financial Advisors, Inc.
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxxxxxxxxx & Co. Inc.
Xxxxxxx Xxxxx & Associates, Inc.
RBC Capital Markets Corporation
Xxxx Xxxx & Co., Inc.
Southwest Securities, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
SunTrust Capital Markets, Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
c/o Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Xxxxx Tax-Managed Global Diversified Equity Income Fund, an
unincorporated Massachusetts business trust (the "Fund"), Xxxxx Xxxxx
Management, an unincorporated Massachusetts business trust (the "Adviser"), and
Rampart Investment Management Company, Inc., a Massachusetts corporation (the
"Subadviser" and together with the Adviser, the "Advisers"), confirm their
respective agreements with Wachovia Capital Markets, LLC ("Wachovia") and each
of the other Underwriters named in Exhibit A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxxx, Citigroup Global
Markets Inc., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx
& Co. Incorporated, UBS
1
Securities LLC and X.X. Xxxxxxx & Sons, Inc. are acting as representatives (in
such capacity, the "Representatives"), with respect to the issue and sale by the
Fund of a total of _________ common shares of beneficial interest, par value
$.01 per share (the "Initial Securities"), and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of Initial
Securities set forth in said Exhibit A hereto, and with respect to the grant by
the Fund to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of ________
additional common shares of beneficial interest to cover over-allotments, if
any. The Initial Securities to be purchased by the Underwriters and all or any
part of the _______ common shares of beneficial interest subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "Securities." Certain terms used in this Agreement are
defined in Section 15 hereof.
The Fund understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Fund has entered into (i) an Investment Advisory Agreement with the
Adviser dated as of January 16, 2007, (ii) an Administration Agreement with the
Adviser dated as of January 16, 2007, (iii) a Letter Agreement, dated as of
January 16, 2007, whereby the Fund adopts and agrees to become party to that
certain Master Custodian Agreement with Investors Bank & Trust Company and (iv)
a Transfer Agency and Services Agreement with American Stock Transfer & Trust
Company dated as of February __, 2007, and such agreements are herein referred
to as the "Advisory Agreement," the "Administration Agreement", the "Custodian
Agreement" and the "Transfer Agency Agreement" respectively, and collectively as
the "Fund Agreements."
The Adviser has entered into a Sub-Advisory Agreement with the Subadviser,
dated as of January 16, 2007, and such agreement is herein referred to as the
"Sub-Advisory Agreement." The Adviser has also entered into a Structuring Fee
Agreement with Wachovia, dated as of February __, a Structuring Fee Agreement
with Citigroup Global Markets Inc., dated as of February __, a Structuring Fee
Agreement with Xxxxxx Xxxxxxx & Co. Incorporated, dated as of February __ and a
Structuring Fee Agreement with UBS Securities LLC, dated as of February __, and
such agreements are herein referred to as the "Structuring Fee Agreements," an
Additional Compensation Agreement with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, dated as of February __ and an Additional Compensation Agreement
with X.X. Xxxxxxx & Sons, Inc., dated as of February __, and such agreements are
herein referred to as the "Additional Compensation Agreements." In addition, the
Fund has adopted a dividend reinvestment plan pursuant to which holders of
common shares of beneficial interest shall have their dividends automatically
reinvested in additional common shares of beneficial interest of the Fund unless
they elect to receive such dividends in cash, and such plan is herein referred
to as "Dividend Reinvestment Plan."
The Fund has prepared and filed with the Commission a registration
statement (file numbers 333-138318 and 811-21973) on Form N-2, including a
related preliminary prospectus (including the statement of additional
information incorporated by reference therein), for registration under the Act
and the 1940 Act of the offering and sale of the Securities. The Fund may have
filed one or more amendments thereto, including a related preliminary prospectus
(including the statement of additional information incorporated by reference
therein), each of which has previously been furnished to you.
The Fund will next file with the Commission one of the following: either
(1) prior to the effective date of the registration statement, a further
amendment to the registration statement (including the form of final prospectus
(including the statement of additional information incorporated by reference
therein)) or (2) after the effective date of the registration statement, a final
prospectus (including the statement of additional information incorporated by
reference therein) in accordance with Rules 430A and 497. In the case of clause
(2), the Fund has included or incorporated by reference in the Registration
Statement, as amended at the effective date, all information (other than Rule
430A Information) required by the 1933 Act and the 1940 Act and the Rules and
Regulations to be included in the registration statement and the Prospectus. As
filed, such amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein), or such final
prospectus (including the statement of additional information incorporated by
reference therein), shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Applicable Time or, to the extent not
completed at the Applicable Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest preliminary
prospectus) as the Fund has advised you, prior to the Applicable Time, will be
included or made therein.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Advisers. The Fund
and the Advisers, jointly and severally, represent and warrant to each
Underwriter as of the date hereof, as of the Applicable Time, as of the Closing
Date referred to in Section 2(c) hereof, and as of each Option Closing Date (if
any) referred to in Section 2(b) hereof, and agree with each Underwriter, as
follows:
(1) Compliance with Registration Requirements. The Securities have
been duly registered under the 1933 Act and the 1940 Act pursuant to the
Registration Statement. Each of the Initial Registration Statement and any
Rule 462(b) Registration Statement has become effective under the 1933 Act
and the 1940 Act, and no stop order suspending the effectiveness of the
Initial Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act or the 1940 Act, and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of
the Fund or the Advisers, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Preliminary Prospectus and the Prospectus complied when
filed with the Commission in all material respects with the requirements of
the 1933 Act, the 1940 Act and the Rules and Regulations, and the
Preliminary Prospectus and the Prospectus and any amendments or supplements
thereto delivered to the Underwriters for use in connection with the
offering of the Securities was identical to the electronically transmitted
copy thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
At the respective times the Initial Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became or become effective and at the Closing Date (and, if any Option
Securities are purchased, at the applicable Option Closing Date), the
Initial Registration Statement, any Rule 462(b) Registration Statement
will, and the 1940 Act Notification when originally filed with the
Commission and any amendments and supplements thereto did or will, comply
in all material respects with the requirements of the 1933 Act, the 1940
Act and the Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, as of its date, at the Closing Date (and, if any Option Securities
are purchased, at the applicable Option Closing Date), and at any time when
a prospectus is required by applicable law to be delivered in connection
with sales of Securities, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Preliminary Prospectus and
the information included on Exhibit E hereto, all considered together
(collectively, the "General Disclosure Package") did not or will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Fund makes no representations or warranties as
to the information contained in or omitted from the Preliminary Prospectus
or the Prospectus in reliance upon and in conformity with information
furnished in writing to the Fund by or on behalf of any Underwriter
specifically for inclusion therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in Section 6(c) hereof.
The Fund's registration statement on Form 8-A under the 1934 Act is
effective.
(2) Independent Accountants. Deloitte & Touche LLP who certified and
audited the financial statements and supporting schedules included in the
Registration Statement, the Preliminary Prospectus and the Prospectus are
independent public accountants as required by the 1933 Act, the 1940 Act
and the Rules and Regulations.
(3) Financial Statements. The financial statements of the Fund
included in the Registration Statement, the Preliminary Prospectus and the
Prospectus, together with the related schedules (if any) and notes, present
fairly the financial position of the Fund at the dates indicated and the
results of operations and cash flows of the Fund for the periods specified;
and all such financial statements have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods involved and
comply in all material respects with all applicable accounting requirements
under the 1933 Act, the 1940 Act and the Rules and Regulations. The
supporting schedules, if any, included in the Registration Statement
present fairly, in accordance with GAAP, the information required to be
stated therein, and the other financial and statistical information and
data included in the Registration Statement, the Preliminary Prospectus and
the Prospectus are accurately derived from such financial statements and
the books and records of the Fund.
(4) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Preliminary Prospectus and the
Prospectus, except as otherwise stated therein, (A) there has been no Fund
Material Adverse Effect and (B) there have been no transactions entered
into by the Fund which are material with respect to the Fund other than
those in the ordinary course of its business as described in the
Preliminary Prospectus and the Prospectus.
(5) Legal Existence of the Fund. The Fund has been duly formed and is
validly existing as an unincorporated business trust under the laws of The
Commonwealth of Massachusetts, with full power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus, and
to enter into and perform its obligations under this Agreement and the Fund
Agreements; and the Fund is duly qualified to do business as a foreign
trust under the laws of each jurisdiction which requires such
qualification.
(6) No Subsidiaries. The Fund has no subsidiaries.
(7) Investment Company Status. The Fund is duly registered under the
1940 Act as a closed-end, diversified management investment company under
the 1940 Act, the Rules and Regulations and the 1940 Act Notification has
become effective. The Fund has not received any notice from the Commission
pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act
Notification or the Registration Statement.
(8) Officers and Trustees. No person is serving or acting as an
officer, trustee or investment adviser of the Fund except in accordance
with the provisions of the 1940 Act and the Rules and Regulations and the
Advisers Act. Except as disclosed in the Registration Statement, the
Preliminary Prospectus and the Prospectus, no trustee of the Fund is (A) an
"interested person" (as defined in the 1940 Act) of the Fund or (B) an
"affiliated person" (as defined in the 1940 Act) of any Underwriter. For
purposes of this Section 1(a)(8), the Fund and the Advisers shall be
entitled to rely on representations from such officers and trustees.
(9) Capitalization. The authorized, issued and outstanding common
shares of beneficial interest of the Fund are as set forth in the
Preliminary Prospectus and in the Prospectus. All issued and outstanding
common shares of beneficial interest of the Fund have been duly authorized
and validly issued and are fully paid and non-assessable, except that, as
set forth in the Registration Statement and the Prospectus, shareholders of
a Massachusetts business trust may under certain circumstances be held
personally liable for its obligations and have been offered and sold or
exchanged by the Fund in compliance with all applicable laws (including,
without limitation, federal and state securities laws); none of the
outstanding common shares of beneficial interest of the Fund was issued in
violation of the preemptive or other similar rights of any security holder
of the Fund; the Securities have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and nonassessable, except that, as set
forth in the Registration Statement and the Prospectus, shareholders of a
Massachusetts business trust may under certain
circumstances be held personally liable for its obligations; the
certificates for the Securities are in valid and sufficient form;
(10) Power and Authority. The Fund has full power and authority to
enter into this Agreement and the Fund Agreements; the execution and
delivery of, and the performance by the Fund of its obligations under this
Agreement and the Fund Agreements have been duly and validly authorized by
the Fund; the Sub-Advisory Agreement has been duly and validly authorized
by the Fund; this Agreement and the Fund Agreements have been duly executed
and delivered by the Fund and constitute the valid and legally binding
agreements of the Fund, enforceable against the Fund in accordance with
their terms, except as rights to indemnity and contribution hereunder may
be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(11) Agreements' Compliance with Law. This Agreement, each of the Fund
Agreements and the Sub-Advisory Agreement complies in all material respects
with all applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(12) Absence of Defaults and Conflicts. The Fund is not (i) in
violation of its Declaration of Trust or bylaws, (ii) in breach or default
in the performance of the terms of any indenture, contract, lease,
mortgage, declaration of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject or (iii) in violation of
any law, ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the NASD, any
state securities commission, any foreign securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Fund.
(13) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Fund, threatened, against or affecting the Fund which is required to be
disclosed in the Preliminary Prospectus and Prospectus (other than as
disclosed therein), or that could reasonably be expected to result in a
Fund Material Adverse Effect, or that could reasonably be expected to
materially and adversely affect the properties or assets of the Fund or the
consummation of the transactions contemplated in this Agreement or the
performance by the Fund of its obligations under this Agreement or the Fund
Agreements; the aggregate of all pending legal or governmental proceedings
to which the Fund is a party or of which any of its property or assets is
the subject which are not described in the Preliminary Prospectus or the
Prospectus or to be filed as an exhibit to the Registration Statement that
are not described or filed as required by the 1933 Act, the 1940 Act or the
Rules and Regulations, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Fund Material
Adverse Effect.
(14) Accuracy of Descriptions and Exhibits. The statements set forth
under the headings "Description of Capital Structure " in the Preliminary
Prospectus and the Prospectus, and "Anti-Takeover Provisions in the
Agreement and Declaration of Trust" and "Federal Income Tax Matters" in the
Preliminary Prospectus, the Prospectus and Statement of Additional
Information, insofar as such statements purport to summarize certain
provisions of the 1940 Act, Massachusetts law, the common shares or the
Fund's Declaration of Trust, United States federal income tax law and
regulations or legal conclusions with respect thereto, fairly and
accurately summarize such provisions in all material respects; all
descriptions in the Registration Statement, the Preliminary Prospectus and
the Prospectus of any Fund documents are accurate in all material respects;
and there are no franchises, contracts, indentures, mortgages, deeds of
trust, loan or credit agreements, bonds, notes, debentures, evidences of
indebtedness, leases or other instruments or agreements required to be
described or referred to in the Registration Statement, the Preliminary
Prospectus or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required by the 1933 Act, the
1940 Act or the Rules and Regulations which have not been so described and
filed as required.
(15) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by the Fund of its obligations under this Agreement or the Fund
Agreements, for the offering, issuance, sale or delivery of the Securities
hereunder, or for the consummation of any of the other transactions
contemplated by this Agreement or the Fund Agreements, in each case on the
terms contemplated by the Registration Statement, the Preliminary
Prospectus and the Prospectus, except such as have been already obtained
and under the 1933 Act, the 1940 Act, the Rules and Regulations, the rules
and regulations of the NASD and the NYSE and such as may be required under
state securities laws.
(16) Non-Contravention. Neither the execution, delivery or performance
of this Agreement, the Fund Agreements nor the consummation by the Fund of
the transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the Declaration
of Trust or bylaws of the Fund, (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Fund is a
party or by which it or any of its properties may be bound or (iii)
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Fund pursuant to the
terms of any agreement or instrument to which the Fund is a party or by
which the Fund may be bound or to which any of the property or assets of
the Fund is subject.
(17) Possession of Licenses and Permits. The Fund has such licenses,
permits, and authorizations of governmental or regulatory authorities
("permits"), if any, as are necessary to own its property and to conduct
its business in the manner described in the
Preliminary Prospectus and the Prospectus; the Fund has fulfilled and
performed all its material obligations with respect to such permits and no
event has occurred which allows or, after notice or lapse of time, would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the Fund under any such permit, subject in each
case to such qualification as may be set forth in the Preliminary
Prospectus and the Prospectus; and, except as described in the Preliminary
Prospectus and the Prospectus, none of such permits contains any
restriction that is materially burdensome to the Fund.
(18) Distribution of Offering Material. The Fund has not distributed
and, prior to the later to occur of (i) the Closing Date and (ii)
completion of the distribution of the Securities, will not distribute any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Preliminary
Prospectus, the Prospectus, the sales material or other materials permitted
by the Act, the 1940 Act or the Rules and Regulations.
(19) Absence of Registration Rights. There are no persons with
registration rights or other similar rights to have any securities (debt or
equity) (A) registered pursuant to the Registration Statement or included
in the offering contemplated by this Agreement or (B) otherwise registered
by the Fund under the 1933 Act or the 1940 Act. There are no persons with
tag-along rights or other similar rights to have any securities (debt or
equity) included in the offering contemplated by this Agreement or sold in
connection with the sale of Securities by the Fund pursuant to this
Agreement.
(20) NYSE. The Securities are duly listed and admitted and authorized
for trading, subject to official notice of issuance and evidence of
satisfactory distribution, on the NYSE.
(21) NASD Matters. All of the information provided to the Underwriters
or to counsel for the Underwriters by the Fund, its officers and Trustees
in connection with letters, filings or other supplemental information
provided to NASD Regulation Inc. pursuant to the NASD's conduct rules is,
to the knowledge of the Fund and the Advisers, true, complete and correct.
(22) Tax Returns. The Fund has filed all tax returns that are required
to be filed and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such tax, assessment, fine
or penalty that is currently being contested in good faith by appropriate
actions and except for such taxes, assessments, fines or penalties the
nonpayment of which would not, individually or in the aggregate, have a
Fund Material Adverse Effect.
(23) Subchapter M. The Fund intends to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code")
to qualify as a regulated investment company under the Code and intends to
direct the investment of the net proceeds of the offering of the Securities
in such a manner as to comply with the requirements of Subchapter M of the
Code.
(24) Insurance. The Fund's trustees and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the 1940
Act Rules and Regulations are in full force and effect; the Fund is in
compliance with the terms of such policy and fidelity bond in all material
respects; and there are no claims by the Fund under any such policy or
fidelity bond as to which any insurance company is denying liability or
defending under a reservation of rights clause; the Fund has not been
refused any insurance coverage sought or applied for; and the Fund has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a Fund Material Adverse Effect, except as set
forth in or contemplated in the Preliminary Prospectus and Prospectus
(exclusive of any supplement thereto).
(25) Accounting Controls and Disclosure Controls. The Fund maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorizations and with the investment
objectives, policies and restrictions of the Fund and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and the
Code; (B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability to calculate net asset value and to maintain material
compliance with the books and records requirements under the 1940 Act and
the 1940 Act Rules and Regulations; (C) access to assets is permitted only
in accordance with management's general or specific authorization; and (D)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences. The Fund employs "disclosure controls and procedures" (as such
term is defined in Rule 30a-3 under the 1940 Act); such disclosure controls
and procedures are effective.
(26) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no
failure on the part of the Fund or any of the Fund's trustees or officers,
in their capacities as such, to comply with any provision of the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated in connection
therewith, including Sections 302 and 906 related to certifications.
(27) Fund Compliance Policies and Procedures. The Fund has adopted and
implemented written policies and procedures reasonably designed to prevent
violation of the Federal Securities Laws (as that term is defined in Rule
38a-1 under the 1940 Act) by the Fund, including policies and procedures
that provide oversight of compliance for each investment adviser,
administrator and transfer agent of the Fund.
(28) Absence of Manipulation. The Fund has not taken and will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security issued by the
Fund to facilitate the sale or resale of the Securities, and the Fund is
not aware of any such action taken or to be taken by any affiliates of the
Fund, other than such actions as taken by the Underwriters that are
affiliates of the Fund, so long as such actions are in compliance with all
applicable law.
(29) Statistical, Demographic or Market-Related Data. Any statistical,
demographic or market-related data included in the Registration Statement,
the Preliminary Prospectus or the Prospectus is based on or derived from
sources that the Fund believes to be reliable and accurate and all such
data included in the Registration Statement, the Preliminary Prospectus or
the Prospectus accurately reflects the materials upon which it is based or
from which it was derived.
(30) Advertisements. All advertising, sales literature or other
promotional material (including "prospectus wrappers", "broker kits", "road
show slides" and "road show scripts"), whether in printed or electronic
form, authorized in writing by or prepared by or at the direction of the
Fund or the Advisers for use in connection with the offering and sale of
the Securities (collectively, "sales material") complied and comply in all
material respects with the applicable requirements of the 1933 Act, the
1940 Act, the Rules and Regulations and the rules and interpretations of
the NASD and if required to be filed with the NASD under the NASD's conduct
rules were provided to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, for filing. No sales material contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Representations and Warranties by the Advisers. Each of the Adviser and
the Subadviser, severally as to itself only and not jointly or as to any other
party, represents and warrants to each Underwriter as of the date hereof, as of
the Applicable Time, as of the Closing Date and as of each Option Closing Date
(if any), and agrees with each Underwriter, as follows:
(1) Investment Adviser Status. Such Adviser is duly registered as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Advisory Agreement,
the Administration Agreement, the Sub-Advisory Agreement, the Structuring
Fee Agreements or the Additional Compensation Agreements to which it is a
party, as contemplated by the Preliminary Prospectus and the Prospectus.
(2) Capitalization. Such Adviser has the financial resources available
to it necessary for the performance of its services and obligations as
contemplated in the Preliminary Prospectus and the Prospectus and under
this Agreement, the Advisory Agreement, the Administration Agreement, the
Sub-Advisory Agreement, the Structuring Fee Agreements or the Additional
Compensation Agreements to which it is a party.
(3) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Preliminary Prospectus and the
Prospectus, except as otherwise stated therein, (A) there has been no
Adviser Material Adverse Effect and (B) there have been no transactions
entered into by such Adviser which are material with respect to such
Adviser other than those in the ordinary course of its business as
described in the Preliminary Prospectus and the Prospectus.
(4) Legal Existence of the Adviser and the Sub-Adviser. Such Adviser
has been duly formed and is validly existing as an unincorporated business
trust under the laws of The Commonwealth of Massachusetts, with full power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the Preliminary
Prospectus and the Prospectus, and is duly qualified to do business under
the laws of each jurisdiction which requires such qualification.
Such Sub-Adviser has been duly incorporated and is validly existing in
good standing as a corporation under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
their properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus, and
is duly qualified to do business and is in good standing under the laws of
each jurisdiction which requires such qualification.
(5) Power and Authority. Such Adviser has full power and authority to
enter into this Agreement, the Advisory Agreement, the Administration
Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreements and
the Additional Compensation Agreements to which such Adviser is a party;
the execution and delivery of, and the performance by such Adviser of its
obligations under this Agreement, the Advisory Agreement, the Sub-Advisory
Agreement, the Structuring Fee Agreements and the Additional Compensation
Agreements to which it is a party have been duly executed and delivered by
such Adviser constitute the valid and legally binding agreements of such
Adviser, enforceable against such Adviser in accordance with their terms,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that the
enforceability of such Adviser's obligations hereunder and thereunder may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(6) Description of the Advisers. The description of such Adviser and
its business and the statements attributable to such Adviser in the
Preliminary Prospectus and Prospectus complied and comply in all material
respects with the provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the 1940 Act Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(7) Non-Contravention. Neither the execution, delivery or performance
of this Agreement, the Advisory Agreement, the Sub-Advisory Agreement, the
Structuring Fee Agreements to which such Adviser is a party nor the
consummation by the Fund or such Adviser of the transactions herein or
therein contemplated (i) conflicts or will conflict with or constitutes or
will constitute a breach of the charter or bylaws of such Adviser, (ii)
conflicts or will conflict with or constitutes or will constitute a breach
of or a default under, any agreement, indenture, lease or other instrument
to which such Adviser is a party or by which it or any of its properties
may be bound or (iii) violates or will violate any statute, law, regulation
or filing or judgment, injunction, order or decree
applicable to such Adviser or any of its properties or will result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of such Adviser pursuant to the terms of any agreement
or instrument to which such Adviser is a party or by which such Adviser may
be bound or to which any of the property or assets of such Adviser is
subject.
(8) Agreements' Compliance with Laws. This Agreement, the Advisory
Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreements and
the Additional Compensation Agreements comply in all material respects with
all applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act, and the Advisers Act Rules and Regulations.
(9) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
such Adviser, threatened, against or affecting such Adviser which is
required to be disclosed in the Preliminary Prospectus and Prospectus
(other than as disclosed therein), or that could reasonably be expected to
result in an Adviser Material Adverse Effect, or that could reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement or the performance by such Adviser of its obligations under this
Agreement, the Advisory Agreement, the Sub-Advisory Agreement, the
Structuring Fee Agreements or the Additional Compensation Agrement to which
it is a party; the aggregate of all pending legal or governmental
proceedings to which such Adviser is a party or of which any of its
property or assets is the subject which are not described in the
Preliminary Prospectus or the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in an Adviser Material Adverse Effect.
(10) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by such Adviser of its obligations under this Agreement, the
Advisory Agreement, the Sub-Advisory Agreement, the Structuring Fee
Agreements or the Additional Compensation Agreements, except such as have
been already obtained under the 1933 Act, the 1940 Act, the Rules and
Regulations, the rules and regulations of the NASD and the NYSE and such as
may be required under state securities laws.
(11) Possession of Permits. Such Adviser has such licenses, permits
and authorizations of governmental or regulatory authorities ("permits"),
if any, as are necessary to own its property and to conduct its business in
the manner described in the Preliminary Prospectus and the Prospectus; such
Adviser has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of such Adviser
under any such permit.
(12) Adviser Compliance Policies and Procedures. Such Adviser has
adopted and implemented written policies and procedures under Rule 206(4)-7
of the Advisers Act reasonably designed to prevent violation of the
Advisers Act and the Advisers Act Rules by such adviser.
(13) Absence of Manipulation. Such Adviser has not taken and will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security issued by the
Fund to facilitate the sale or resale of the Securities, and the Adviser is
not aware of any such action taken or to be taken by any affiliates of the
Adviser, other than such actions as taken by the Underwriters that are
affiliates of the Adviser, so long as such actions are in compliance with
all applicable law.
(c) Certificates. Any certificate signed by any officer of the Fund or such
Adviser and delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Fund or such Adviser, as
the case may be, to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Fund agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Fund, at a
purchase price of $_____ per share, the amount of the Initial Securities set
forth opposite such Underwriter's name in Exhibit A hereto. The Fund is advised
that the Underwriters intend to (i) make a public offering of their respective
portions of the Securities as soon after the Applicable Time as is advisable and
(ii) initially to offer the Securities upon the terms set forth in the
Preliminary Prospectus and the Prospectus.
(b) Option Securities. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Fund hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to ___________ Option Securities at the same purchase price per share as the
Underwriters shall pay for the Initial Securities. Said option may be exercised
only to cover over-allotments in the sale of the Initial Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time on or before the 45th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Fund setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Initial Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares. Any such time and date
of delivery (an "Option Closing Date") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Date, as
hereinafter defined.
(c) Payment. Payment of the purchase price for the Initial Securities, and
delivery of the related closing certificates therefor, shall be made at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Fund, at 9:00 A.M. (Eastern time) on February __, 2007
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Fund (such time and date of payment and
delivery being herein called "Closing Date").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Fund, on each Option Closing Date as specified in the notice from the
Representatives to the Fund.
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Fund by Federal Funds wire transfer payable in same-day
funds to an account specified by the Fund. Delivery of the Initial Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct. Wachovia,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Date or the relevant Option Closing Date,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Date or the relevant Option Closing Date, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than noon (Eastern time) on
the business day prior to the Closing Date or the relevant Option Closing Date,
as the case may be.
SECTION 3. Covenants of the Fund and the Advisers. The Fund and the
Advisers, jointly and severally, covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Fund, subject to Section 3(a)(ii), will comply with the requirements of
Rule 430A and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes, or of any examination pursuant
to Section 8(e) of the 1940 Act concerning the Registration Statement and
(v) if the Fund becomes the subject of a proceeding under Section 8A of the
1933 Act in connection with the offering of the Securities. The Fund will
uses its best efforts in connection with the offering of the Securities to
prevent the issuance of any stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) Filing of Amendments. The Fund will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act or otherwise, or will furnish
the Representatives with copies of any such documents within a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Fund has furnished or
will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith)
and signed copies of all consents and certificates of experts. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
prepared prior to the date of this Agreement as such Underwriter reasonably
requested, and the Fund hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Fund will furnish to each
Underwriter, without charge, such number of copies of the documents
constituting the General Disclosure Package prepared on or after the date
of this Agreement and the Prospectus (and any amendments or supplements
thereto) as such Underwriter may reasonably request. The Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto
furnished to the Underwriters is or will be, as the case may be, identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Fund will comply
with the 1933 Act, the 1940 Act and the Rules and Regulations so as to
permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Securities (including, without limitation, pursuant to Rule 172), any event
shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Fund, to amend
the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel, at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the requirements of
the 1933 Act, the 1940 Act or the Rules and Regulations, the Fund will
promptly prepare and file with the Commission, subject to Section 3(b)
hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Fund will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering
and sale, to the extent required, under the applicable securities laws of
states of the United States, the District of Columbia, Guam, Puerto Rico
and the U.S. Virgin Islands as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one
year from the date of this Agreement; provided, however, that the Fund
shall not be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(g) Rule 158. The Fund will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement for the
purposes of, and to provide to the Underwriters the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Fund will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(i) Reporting Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act, the 1940 Act or
the Rules and Regulations, will file all documents required to be filed
with the Commission pursuant to the 1933 Act, the 1940 Act or the Rules and
Regulations within the time periods required by the 1934 Act, the 1940 Act
or the Rules and Regulations.
(j) Subchapter M. The Fund will comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment company under
the Code.
(k) Absence of Manipulation. The Fund and the Advisers have not taken
and will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security issued by
the Fund to facilitate the sale or resale of the Securities, and the Fund
and the Advisers are not aware of any such action taken or to be taken by
any affiliates of the Fund or the Advisers, other than such actions as
taken by the Underwriters that are affiliates of the Fund or the Advisers,
so long as such actions are in compliance with all applicable law.
(l) Restriction on Sale of Securities. The Fund will not, without the
prior written consent of Wachovia Capital Markets, LLC, offer, sell,
contract to sell, pledge, or otherwise dispose of, or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Fund or
any affiliate of the Fund or any person in privity with the Fund, directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other Securities or any securities convertible into, or exercisable, or
exchangeable for, Securities; or publicly announce an intention to effect
any such transaction for a period of 180 days following the Execution Time,
provided, however, that the Fund may issue and sell Securities pursuant to
any dividend reinvestment plan of the Fund in effect at the Execution Time.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the word
processing, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities, if any, to the Underwriters, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Securities to the Underwriters, (iv) the fees and disbursements
of the counsel, accountants and other Advisers to the Fund, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, the documents constituting the General Disclosure
Package, the Prospectus and the 1940 Act Notification, any sales material and
any amendments or supplements thereto, (vii) the preparation and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplements thereto,
(viii) the fees and expenses of the custodian and the transfer agent and
registrar for the Securities pursuant to Fund Agreements or any other
arrangements with such parties, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (x) the
transportation and other expenses incurred by Fund and Adviser personnel in
connection with presentations to prospective purchasers of the Securities, (xi)
the fees and expenses incurred in connection with the listing of the Securities
on the NYSE and (xii) all other costs and expenses incident to the performance
by the Fund of its obligations hereunder. To the extent that the foregoing costs
and expenses incidental to the performance of
the obligations of the Fund under this Agreement (other than the sales load)
exceed $0.04 per share, the Adviser will pay all such costs and expenses.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or (v) hereof, the Fund and the Advisers, jointly and severally, agree
that they shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase the Initial Securities and the Option Securities, as
the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Fund and the Advisers contained herein as of the
Applicable Time, the Closing Date and any Option Closing Date pursuant to
Section 4 hereof, to the accuracy of the statements of the Fund and the Advisers
made in any certificates pursuant to the provisions hereof, to the performance
by the Fund and the Advisers of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Date (or the applicable Option Closing Date,
as the case may be) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or any
notice objecting to its use or order pursuant to Section 8(e) of the 1940
Act shall have been issued and proceedings therefor initiated or, to the
knowledge of the Fund, threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with
the Commission in accordance with Rule 497 or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A.
(b) Opinion of Counsel for Fund. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP, counsel
for the Fund ("Fund Counsel"), in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the Underwriters
may reasonably request. The opinion of Fund Counsel shall state that
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, may rely on
such opinion as to matters of Massachusetts law for the purposes of
rendering its opinion referenced in Section 5(c).
(c) Opinion of Counsel for Underwriters. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, in form and substance satisfactory to the
Representatives. Insofar as the opinion expressed above
relates to or is dependent upon matters governed by Massachusetts, Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP will be permitted to rely on the opinion of Fund
Counsel.
(d) Certificate of the Fund. At the Closing Date or the applicable
Option Closing Date, as the case may be, there shall not have been, since
the date hereof or since the respective dates as of which information is
given in the Prospectus or the General Disclosure Package (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), any Fund Material Adverse Effect, and, at the Closing Date, the
Representatives shall have received a certificate of the Chairman, the
President, the Chief Executive Officer or an Executive Vice President,
Senior Vice President, or such other authorized officer as is acceptable to
the Underwriters, of the Fund and of the Chief Financial Officer or Chief
Accounting Officer, or such other authorized officer as is acceptable to
the Underwriters, of the Fund dated as of the Closing Date, to the effect
that (i) there has been no such Fund Material Adverse Effect, (ii) the
representations and warranties of the Fund in this Agreement are true and
correct with the same force and effect as though expressly made at and as
of the Closing Date, (iii) the Fund has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date under or pursuant to this Agreement, and (iv) no
stop order suspending the effectiveness of the Registration Statement or
order of suspension or revocation of registration pursuant to Section 8(e)
of the 1940 Act has been issued, and no proceedings for that purpose have
been instituted or are pending or, to their knowledge, are contemplated by
the Commission.
(e) Opinion of Counsel for the Adviser. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of Xxxxxxxxx X. Xxxxxx, counsel for the Adviser, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit C hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(f) Certificate of the Adviser. At the Closing Date or the applicable
Option Closing Date, as the case may be, there shall not have been, since
the date hereof or since the respective dates as of which information is
given in the Prospectus or the General Disclosure Package (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), any Adviser Material Adverse Effect, and, at the Closing Date,
the Representatives shall have received a certificate of the Chairman, the
President, the Chief Executive Officer or an Executive Vice President,
Senior Vice President, or such other authorized officer as is acceptable to
the Underwriters, of such Adviser and of the Chief Financial Officer of
Chief Accounting Officer, or such other authorized officer as is acceptable
to the Underwriters, of such Adviser dated as of the Closing Date, to the
effect that (i) there has been no such Adviser Material Adverse Effect,
(ii) the representations and warranties of such Adviser in this Agreement
are true and correct with the same force and effect as though expressly
made at and as of the Closing Date, (iii) such Adviser has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date under or pursuant to this
Agreement, and (iv) no stop order suspending the effectiveness of the
Registration Statement or order of suspension or revocation of registration
pursuant to Section 8(e) of
the 1940 Act has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, are contemplated by the
Commission.
(g) Opinion of Counsel for the Subadviser. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP, counsel
for the Subadviser.
(h) Certificate of the Subadviser. At the Closing Date or the
applicable Option Closing Date, as the case may be, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), any Adviser Material Adverse Effect, and, at the
Closing Date, the Representatives shall have received a certificate of the
Chairman, the President, the Chief Executive Officer or an Executive Vice
President, Senior Vice President, or such other authorized officer as is
acceptable to the Underwriters, of the Subadviser and of the Chief
Financial Officer of Chief Accounting Officer, or such other authorized
officer as is acceptable to the Underwriters, of the Subadviser, dated as
of the Closing Date, to the effect that (i) there has been no such Adviser
Material Adverse Effect, (ii) the representations and warranties of such
Subadviser in this Agreement are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (iii) such
Subadviser has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Date under
or pursuant to this Agreement, and (iv) no stop order suspending the
effectiveness of the Registration Statement or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act has
been issued and no proceedings for that purpose have been instituted or are
pending or, to such Subadviser's knowledge, are contemplated by the
Commission.
(i) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche
LLP a letter, dated the date of this Agreement and in form and substance
satisfactory to the Representatives, together with signed or reproduced
copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information of the Fund contained in the Registration
Statement or the Prospectus.
(j) Bring-down Comfort Letter. At the Closing Date, the
Representatives shall have received from Deloitte & Touche LLP a letter,
dated as of the Closing Date and in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (e) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to the Closing Date.
(k) No Objection. Prior to the date of this Agreement, NASD Regulation
Inc. shall have confirmed that it has no objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(l) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities on any Option Closing
Date that is after the Closing Date, the obligations of the several
Underwriters to purchase the applicable Option Securities shall be subject
to the conditions specified in the introductory paragraph of this Section 5
and to the further condition that, at the applicable Option Closing Date,
the Representatives shall have received:
(1) Officers' Certificate. A certificate, dated such Option
Closing Date, to the effect set forth in, and signed by two of the
officers specified in, Section 5(d) hereof, except that the references
in such certificate to the Closing Date shall be changed to refer to
such Option Closing Date.
(2) Opinion of Counsel for Fund. The favorable opinion of Fund
Counsel in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(3) Opinion of Counsel for Underwriters. The favorable opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated
such Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(4) Opinion of Counsel for the Adviser. The favorable opinion of
Xxxxxxxxx X. Xxxxxx, counsel for the Adviser, dated such Option
Closing Date, relating to the Option Securities to be purchased on
such Option Closing Date and otherwise to the same effect as the
opinion required by Section 5(e) hereof.
(5) Certificate of the Adviser. A certificate, dated such Option
Closing Date, to the effect set forth in, and signed by two of the
officers specified in, Section 5(f) hereof, except that the references
in such certificate to the Closing Date shall be changed to refer to
such Option Closing Date.
(6) Opinion of Counsel for the Subadviser. The favorable opinion
of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP, counsel for the
Subadviser, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise
to the same effect as the opinion required by Section 5(g) hereof.
(7) Certificate of the Subadviser. A certificate, dated such
Option Closing Date, to the effect set forth in, and signed by two of
the officers specified in, Section 5(h) hereof, except that the
references in such certificate to the Closing Date shall be changed to
refer to such Option Closing Date.
(8) Bring-down Comfort Letter. A letter from Deloitte & Touche
LLP, in form and substance satisfactory to the Representatives and
dated such
Option Closing Date, substantially in the same form and substance as
the letter furnished to the Representatives pursuant to Section 5(j)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Option Closing Date.
(m) Additional Documents. At the Closing Date and at each Option
Closing Date, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
contained in this Agreement; and all proceedings taken by the Fund and the
Advisers in connection with the issuance and sale of the Securities as
herein contemplated and in connection with the other transactions
contemplated by this Agreement shall be satisfactory in form and substance
to the Representatives and counsel for the Underwriters.
(n) Delivery of Documents. The documents required to be delivered by
this Section 5 shall be delivered at the office of Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, on the Closing Date and at each Option Closing Date.
(o) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase
of Option Securities on an Option Closing Date which is after the Closing
Date, the obligations of the several Underwriters to purchase the relevant
Option Securities, may be terminated by the Representatives by notice to
the Fund.
SECTION 6. Indemnification.
(a) Indemnification by the Fund and the Advisers. The Fund and the
Advisers, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue statement
or alleged untrue statement of a material fact included in any preliminary
prospectus, any sales material, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(f) below) any such settlement is effected with the written consent of the
Fund and the Advisers; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund or the
Advisers by any Underwriter through Wachovia expressly for use in the
Registration Statement (or any amendment thereto), or in any preliminary
prospectus, any sales material, the Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Indemnification by the Adviser. The Adviser also agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any statement or communication made by
the Adviser or its representatives that constitutes or is alleged to constitute
an offer or sale of or prospectus for the Securities other than those made in
the Registration Statement (or any amendment thereto), or in any sales material,
the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto), including amounts paid in settlement or investigation to the extent
set forth in paragraph (a) above.
(c) Indemnification by the Underwriters. Each Underwriter severally agrees
to indemnify and hold harmless each of the Fund and the Advisers, each of their
directors, trustees, members, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Fund or the Advisers within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus, any sales material, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Fund or the Advisers by
such Underwriter through Wachovia expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus, any sales
material, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto). The Fund and the Advisers acknowledge that the statements
set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading "Underwriting", (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances, (iii)
the dollar amounts and percentages in the fifth, sixth and seventh paragraphs
relating to underwriter compensation under the NASD Corporate Finance Rules and
(iv) the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Prospectus and the Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. Counsel to the indemnified parties shall be selected as follows:
counsel to the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall be selected by Xxxxxxxx; counsel to the Fund, its directors,
trustees, members, each of its officers who signed the Registration Statement
and each person, if any, who controls the Fund within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Fund; and
counsel to each Adviser and each person, if any, who controls such Adviser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall be selected by such Adviser. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the Underwriters and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Fund, each of their directors, trustees,
members, each of its officers who signed the Registration Statement and each
person, if any, who controls the Fund within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
each of the Advisers, and the fees and expenses of more than one counsel, in
each case in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(e) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(f) Other Agreements with Respect to Indemnification and Contribution. The
provisions of this Section 6 and in Section 7 hereof shall not affect any
agreements among the Fund and the Advisers with respect to indemnification of
each other or contribution between themselves.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and the
Advisers on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Fund and the Advisers on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Fund and the Advisers on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Fund and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Securities as set forth on
such cover.
The relative fault of the Fund and the Advisers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund, by the Advisers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Advisers and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each trustees, officer, employee and agent of an Underwriter
shall have the same rights to contributions as such Underwriters, and each
person who controls the Fund or the Adviser within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, each officer of the Fund and the
Advisers and each trustee, director or member of the Fund and the Advisers shall
have the same rights to contribution as the Fund and the Advisers. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Securities set forth opposite
their respective names in Exhibit A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Fund or signed by or on behalf of the Advisers
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Fund, or by or on behalf of the
Advisers, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement,
by notice to the Fund or the Advisers, at any time on or prior to the Closing
Date (and, if any Option Securities are to be purchased on an Option Closing
Date which occurs after the Closing Date, the Representatives may terminate the
obligations of the several Underwriters to purchase such Option Securities, by
notice to the Fund, at any time on or prior to such Option Closing Date) (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any Fund Material Adverse Effect or Adviser Material
Adverse Effect, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political,
financial or economic conditions, in each case the effect of which is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Fund has been suspended or materially
limited by the Commission or the NYSE, or if trading generally on the NYSE or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8, and 12 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Date or an Option Closing Date to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to
any Option Closing Date which occurs after the Closing Date, the obligation
of the Underwriters to purchase and of the Fund to sell the Option
Securities that were to have been purchased and sold on such Option Closing
Date, shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of an Option Closing Date which is after the
Closing Date, which does not result in a termination of the obligation of the
Underwriters to purchase and the Fund to sell the relevant Option Securities, as
the case may be, the Representatives shall have the right to postpone the
Closing Date or the relevant Option Closing Date, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Wachovia Capital
Markets, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Equity
Syndicate; notices to the Fund and the Adviser shall be directed to them at 000
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, Esq., with
a copy to Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP, Xxx Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, Esq.; notices to the
Subadviser shall be directed to it at Rampart Investment Management Company,
Inc., Xxx Xxxxxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxxx Xxxxxx, Esq..
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Fund and the Advisers and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund and the Advisers and their respective successors and the
controlling persons and directors, officers, members and trustees referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Fund and the Advisers and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Section and Exhibit headings herein are
for convenience only and shall not affect the construction hereof.
SECTION 15. Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below:
"Advisers Act" means the Investment Advisers Act of 1940, as amended.
"Advisers Act Rules and Regulations" means the rules and regulations of the
Commission under the Advisers Act.
"Adviser Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Adviser or the Subadviser, as the case may be, whether
or not arising in the ordinary course of business.
"Agreement and Declaration of Trust" means the Declaration of Trust of
Xxxxx Xxxxx Tax-Managed Global Diversified Equity Income Fund dated as of
October 30, 2006.
"Applicable Time" means the date and time that this Agreement is executed
and delivered by the parties hereto.
"Commission" means the Securities and Exchange Commission.
"XXXXX" means the Commission's Electronic Data Gathering, Analysis and
Retrieval System.
"Fund Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course of
business.
"GAAP" means generally accepted accounting principles.
"Initial Registration Statement" means the Fund's registration statement
(File Nos. 333-138318 and 811-21973) on Form N-2 (including the statement of
additional information incorporated by reference therein), as amended (if
applicable), at the time it became effective, including the Rule 430A
Information.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange.
"Organizational Documents" means (a) in the case of a corporation, its
charter and bylaws; (b) in the case of a limited or general partnership, its
partnership certificate, certificate of formation or similar organizational
document and its partnership agreement; (c) in the case of a corporation, its
articles of organization, certificate of formation or similar organizational
documents and its operating agreement, corporation agreement, membership
agreement or other similar agreement; (d) in the case of a trust, its agreement
and declaration of trust, certificate of trust, certificate of formation or
similar organizational document and its trust agreement or other similar
agreement; and (e) in the case of any other entity, the organizational and
governing documents of such entity.
"preliminary prospectus" means any prospectus (including the statement of
additional information incorporated by reference therein) used in connection
with the offering of the Securities that was used before the Initial
Registration Statement became effective, or that was used after such
effectiveness and prior to the execution and delivery of this Agreement, or that
omitted the Rule 430A Information or that was captioned "Subject to Completion".
"Preliminary Prospectus" shall mean the preliminary prospectus (including
the statement of additional information incorporated by reference therein) dated
February __, 2007 and any preliminary prospectus (including the statement of
additional information incorporated by reference therein) included in the
Registration Statement at the Applicable Time that omits Rule 430A Information.
"Prospectus" shall mean the prospectus (including the statement of
additional information incorporated by reference therein) relating to the
Securities that is first filed pursuant to Rule 497 after the Applicable Time.
"Registration Statement" means the Initial Registration Statement; provided
that, if a Rule 462(b) Registration Statement is filed with the Commission, then
the term "Registration Statement" shall also include such Rule 462(b)
Registration Statement.
"Rule 172," "Rule 497," "Rule 430A," "Rule 433" and "Rule 462(b)" refer to
such rules under the 1933 Act.
"Rule 430A Information" means the information included in the Prospectus
that was omitted from the Initial Registration Statement at the time it became
effective but that is deemed to be a part of the Initial Registration Statement
at the time it became effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" means a registration statement filed
by the Fund pursuant to Rule 462(b) for the purpose of registering any of the
Securities under the 1933 Act, including the Rule 430A Information.
"Rules and Regulations" means, collectively, the 1933 Act Rules and
Regulations and the 1940 Act Rules and Regulations.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder or implementing the provisions thereof.
"1933 Act" means the Securities Act of 1933, as amended.
"1933 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1933 Act.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1934 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1934 Act.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1940 Act Notification" means a notification of registration of the Fund as
an investment company under the 1940 Act on Form N-8A, as the 1940 Act
Notification may be amended from time to time.
"1940 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1940 Act.
All references in this Agreement to the Registration Statement, the Initial
Registration Statement, any Rule 462(b) Registration Statement, any preliminary
prospectus, the Preliminary Prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to XXXXX.
SECTION 16. Absence of Fiduciary Relationship. Each of the Fund and the
Advisers acknowledges and agrees that:
(a) Each of the Underwriters is acting solely as an underwriter in
connection with the public offering of the Securities and no fiduciary, advisory
or agency relationship between the Fund or the Advisers, on the one hand, and
any of the Underwriters, on the other hand, has been or will be created in
respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not any of the Underwriters have advised or is advising the Fund
or the Advisers on other matters and none of the Underwriters has any obligation
to the Fund or the Advisers with respect to the transactions contemplated by
this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities and the price to be paid by
the Underwriters for the Securities set forth in this Agreement were established
by the Fund following discussions and arms-length negotiations with the
Representatives;
(c) it is capable of evaluating and understanding, and understands and
accepts, the terms, risks and conditions of the transactions contemplated by
this Agreement;
(d) in connection with each transaction contemplated by this Agreement and
the process leading to such transactions, each Underwriter is and has been
acting solely as principal and not as fiduciary, Adviser or agent of the Fund or
the Advisers or any of their respective affiliates;
(e) none of the Underwriters has provided any legal, accounting, regulatory
or tax advice to the Fund or the Advisers with respect to the transactions
contemplated by this Agreement and it has consulted its own legal, accounting,
regulatory and tax advisers to the extent it has deemed appropriate;
(f) it is aware that the Underwriters and their respective affiliates are
engaged in a broad range of transactions which may involve interests that differ
from those of the Fund and the Advisers, and that none of the Underwriters has
any obligation to disclose such interests and transactions to the Fund or the
Advisers by virtue of any fiduciary, Advisory or agency relationship; and
(g) in connection with each transaction contemplated by this Agreement and
the process leading to such transactions, it waives, to the fullest extent
permitted by law, any claims it may have against any of the Underwriters for
breach of fiduciary duty or alleged breach of fiduciary duty and agrees that
none of the Underwriters shall have any liability (whether direct or indirect,
in contract, tort or otherwise) to it in respect of such a fiduciary duty claim
or to any person asserting a fiduciary duty claim on its behalf or on behalf of
the Fund or the Advisers.
SECTION 17. Disclaimer of Liability of Trustees and Beneficiaries. A copy
of the Agreement and Declaration of Trust of each of the Fund and the Adviser is
on file with the Secretary of State of The Commonwealth of Massachusetts, and
notice hereby is given that this Underwriting Agreement is executed on behalf of
the Fund and the Adviser, respectively, by an officer or Trustee of the Fund or
the Adviser, as the case may be, in his or her capacity as an officer or Trustee
of the Fund or the Adviser, as the case may be, and not individually and that
the obligations under or arising out of this Underwriting Agreement are not
binding upon any of
the Trustees, officers or shareholders individually but are binding only upon
the assets and properties of the Fund or the Adviser, as the case may be.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Fund and the Advisers a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Fund and the Advisers in accordance with
its terms.
Very truly yours,
XXXXX XXXXX TAX-MANAGED GLOBAL
DIVERSIFIED EQUITY INCOME FUND
By
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX XXXXX MANAGEMENT
By
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
RAMPART INVESTMENT MANAGEMENT COMPANY,
INC.
By
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONFIRMED AND ACCEPTED, as of the
date first above written:
WACHOVIA CAPITAL MARKETS, LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
UBS SECURITIES LLC
X.X. XXXXXXX & SONS, INC.
XXXXXX X. XXXXX & CO.
BANC OF AMERICA SECURITIES LLC
BB&T CAPITAL MARKETS, A DIVISION OF
XXXXX & XXXXXXXXXXXX, INC.
XXXXXXX, XXXXXX & CO.
XXXXXX, XXXXX XXXXX, INCORPORATED
H&R BLOCK FINANCIAL ADVISORS, INC.
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
XXXXXXXXXXX & CO. INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
RBC CAPITAL MARKETS CORPORATION
XXXX XXXX & CO., INC.
SOUTHWEST SECURITIES, INC.
XXXXXX, XXXXXXXX & COMPANY,
INCORPORATED
SUNTRUST CAPITAL MARKETS, INC.
WEDBUSH XXXXXX SECURITIES INC.
XXXXX FARGO SECURITIES, LLC
By: WACHOVIA CAPITAL MARKETS, LLC
By
----------------------------------
Authorized Signatory
For themselves and as Representatives of the Underwriters named in Exhibit A
hereto.
EXHIBIT A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Wachovia Capital Markets, LLC......................................
Citigroup Global Markets Inc.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated __________
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC __________
X.X. Xxxxxxx & Sons, Inc. __________
Xxxxxx X. Xxxxx & Co.
Banc of America Securities LLC __________
BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc. __________
Xxxxxxx, Xxxxxx & Co. __________
Xxxxxx, Xxxxx Xxxxx, Incorporated __________
H&R Block Financial Advisors, Inc. __________
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________
Xxxxxx Xxxxxxxxxx Xxxxx LLC __________
Xxxxxxxxxxx & Co. Inc. __________
Xxxxxxx Xxxxx & Associates, Inc. __________
RBC Capital Markets Corporation __________
Xxxx Xxxx & Co., Inc. __________
Southwest Securities, Inc. __________
Xxxxxx, Xxxxxxxx & Company, Incorporated __________
Suntrust Capital Markets, Inc. __________
Wedbush Xxxxxx Securities Inc. __________
Xxxxx Fargo Securities, LLC __________
Total __________
A-1
EXHIBIT B
FORM OF OPINION OF FUND COUNSEL
(a) The Fund has been duly formed and is validly existing as an
unincorporated business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Preliminary Prospectus and the Prospectus, and to enter into and
perform its obligations under this Agreement and the Fund Agreements;
and the Fund is duly qualified to do business as a foreign trust under
the laws of each jurisdiction which requires such qualification.
(b) The Fund has full power and authority to enter into the
Underwriting Agreement and the Fund Agreements; the execution and
delivery of, and the performance by the Fund of its obligations under
the Underwriting Agreement and the Fund Agreements have been duly and
validly authorized by the Fund; the Sub-Advisory Agreement has been
duly and validly authorized by the Fund; the Underwriting Agreement
and the Fund Agreements have been duly executed and delivered by the
Fund and constitute the valid and legally binding agreements of the
Fund, enforceable against the Fund in accordance with their terms,
except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(c) The execution and delivery by the Fund of the Underwriting
Agreement, each of the Fund Agreements and the performance by the Fund
of its obligations under the Underwriting Agreement, each of the Fund
Agreements, each in accordance with its terms, do not and will not (i)
conflict with the Declaration of Trust or bylaws of the Fund, (ii)
constitute a violation of, or a default under, any applicable
contract, indenture, lease or other instrument to which the Fund is a
party or by which it or any of its properties may be bound or (iii)
violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Fund or any of its
properties or cause the creation of any security interest or lien upon
any of the property of the Fund pursuant to any applicable contract.
(d) (A) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the performance by the Fund of
its obligations under the Underwriting Agreement or the Fund
Agreements, for the offering, issuance, sale or delivery of the
Securities hereunder, or for the consummation of any of the other
transactions contemplated
B-1
by the Underwriting Agreement or the Fund Agreements, in each case on
the terms contemplated by the Registration Statement, the Preliminary
Prospectus and the Prospectus, except such as have been already
obtained and under the 1933 Act, the 1940 Act, the Rules and
Regulations, the rules and regulations of the NASD and the NYSE and
such as may be required under state securities laws.
(e) No governmental approval, which has not been obtained or
taken and is not in full force and effect, is required to authorize,
or is required in connection with, the execution and delivery of the
Underwriting Agreement, any of the Fund Agreements or the
enforceability of any of the Fund Agreements against the Fund.
(f) The Fund is registered with the Commission pursuant to
Section 8 of the 1940 Act as a diversified, closed-end management
investment company; and the Fund has not received any notice from the
Commission with respect to the 1940 Act Notification or the
Registration Statement; and the Fund's Declaration of Trust and bylaws
comply in all material respects with the 1940 Act and the 1940 Act
Rules and Regulations.
(g) The Fund has an authorized, issued and outstanding
capitalization as set forth in the Preliminary Prospectus and the
Prospectus (without giving effect to the issuance and sale of the
Securities to the Underwriters pursuant to the Underwriting Agreement)
and the authorized capitalization of the Fund conforms to the
description thereof contained in the Registration Statement, the
Preliminary Prospectus and the Prospectus; all of the outstanding
common shares of beneficial interest have been duly authorized and
validly issued, and are fully paid and non-assessable; the Securities
have been duly authorized by all necessary action of the Fund under
Massachusetts law and, when issued to and paid for by the Underwriters
in accordance with the Underwriting Agreement, will be validly issued,
fully paid and non-assessable representing undivided beneficial
ownership interests in the assets of the Fund; in regard to the common
shares' nonassessability, it is noted that the Fund is an entity of
the type commonly known as a "Massachusetts business trust." Under
Massachusetts law, holders of such shares of beneficial interest
could, under certain circumstances described in the Registration
Statement, be held personally liable for obligations of the Fund; the
form of certificate that may be used to evidence the common shares of
beneficial interest complies in all material respects with the
applicable requirements of the Fund's Declaration of Trust, the
bylaws, the laws of The Commonwealth of Massachusetts and the rules of
the NYSE, in each case as in effect on the date hereof.
(h) No holders of outstanding common shares of beneficial
interest are entitled as such to any preemptive or other rights to
subscribe for any common shares of beneficial interest under any
applicable contract, under the Fund's Declaration of Trust or the
bylaws or under laws of The Commonwealth of Massachusetts.
B-2
(i) The statements set forth under the headings "Description of
Capital Structure" in the Preliminary Prospectus and the Prospectus,
"Anti-Takeover Provisions in the Agreement and Declaration of Trust"
and "Federal Income Tax Matters" in the Preliminary Prospectus, the
Prospectus and Statement of Additional Information, insofar as such
statements purport to summarize certain provisions of the 1940 Act,
laws of The Commonwealth of Massachusetts, the common shares of
beneficial interest or the Fund's Declaration of Trust, United States
federal income tax law and regulations or legal conclusions with
respect thereto, fairly and accurately summarize such provisions in
all material respects.
(j) To such counsel's knowledge there are no legal or
governmental proceedings pending or threatened to which the Fund is a
party that are required to be described in the Registration Statement,
the Preliminary Prospectus or the Prospectus and are not so described
therein, and no contract, indenture, lease, agreement or other
document is required to be described in the Registration Statement,
the Preliminary Prospectus or Prospectus or to be filed as an exhibit
to the Registration Statement that is not described therein or filed
as required.
(k) Such counsel has been orally advised that the Registration
Statement has become effective under the 1933 Act and, to the best
knowledge of such counsel after reasonable inquiry, no stop order
suspending the effectiveness of the Registration Statement or order
pursuant to Section 8(e) of the 1940 Act has been issued and no
proceedings for that purpose are pending before or contemplated by the
Commission. The filing of the Preliminary Prospectus or the Prospectus
pursuant to Rule 497 under the Act Rules and Regulations has been made
in the manner and within the time period required by Rule 497(h) of
the Act Rules and Regulations.
(l) The Registration Statement, the Preliminary Prospectus and
the Prospectus and the 1940 Act Notification (in each case, other than
the financial statements and schedules and any other financial or
statistical information or calculations contained therein or
incorporated therein by reference and other than any exhibits,
schedules or appendices included or incorporated by reference therein,
as to which such counsel expresses no opinion) appear on their face to
be appropriately responsive in all material respects with the
applicable requirements of the Act, the Act Rules and Regulations, the
1940 Act and the 1940 Act Rules and Regulations.
Nothing has come to such counsel's attention that would lead it to believe that:
(1) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or
(2) the Preliminary Prospectus, as of the Applicable Time, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated
B-3
therein or necessary to make the statements therein, in the light of
circumstances under which they were made, not misleading, or
(3) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and schedules
and any other financial or statistical information or calculations
contained therein or incorporated therein by reference and other than any
exhibits, schedules or appendices included or incorporated by reference
therein, as to which such counsel expresses no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, The Commonwealth of Massachusetts, the Federal laws of the
United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Fund and public officials.
References to the Preliminary Prospectus or the Prospectus shall also
include any supplements thereto at the Closing Date.
B-4
EXHIBIT C
FORM OF OPINION OF ADVISER'S COUNSEL
(a) The Adviser has been duly formed and is validly existing as
an unincorporated business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus,
and to enter into and perform its obligations under this Agreement,
the Fund Agreements to which it is a party, the Structuring Fee
Agreements and the Additional Compensation Agreements; and the Adviser
is duly qualified to do business as a foreign trust and is in good
standing under the laws of each jurisdiction which requires such
qualification.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act, and is not prohibited by
the Advisers Act, the 1940 Act or the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under
the Advisory Agreement, the Sub-Advisory Agreement, the Structuring
Fee Agreements or the Additional Compensation Agreements and, to the
best of such counsel's knowledge after reasonable inquiry, there does
not exist any proceeding which should reasonably be expected to
adversely affect the registration of the Adviser with the Commission;
(c) The Adviser has full power and authority to enter into the
Underwriting Agreement, the Advisory Agreement, the Administration
Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreements
and the Additional Compensation Agreements; the execution and delivery
of, and the performance by such Adviser of its obligations under the
Underwriting Agreement, the Advisory Agreement, the Sub-Advisory
Agreement, the Structuring Fee Agreements and the Additional
Compensation Agreements have been duly executed and delivered by such
Adviser constitute the valid and legally binding agreements of such
Adviser, enforceable against such Adviser in accordance with their
terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Each of the Advisory Agreement and the Sub-Advisory Agreement
complies in all material respects with all applicable provisions of
the Advisers Act, the 1940 Act and the Advisers Act Rules and
Regulations and the 1940 Act Rules and Regulations;
C-1
(e) Neither the execution, delivery or performance of the
Underwriting Agreement, the Advisory Agreement, the Sub-Advisory
Agreement, the Structuring Fee Agreements or the Additional
Compensation Agreements to which such Adviser is a party nor the
consummation by such Adviser of the transactions therein contemplated
(i) conflicts or will conflict with or constitutes or will constitute
a breach of the charter or bylaws of such Adviser, (ii) conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, any agreement, indenture, lease or other instrument to
which such Adviser is a party or by which it or any of its properties
may be bound or (iii) violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to such Adviser or any of its properties or will result in
the creation or imposition of any material lien, charge or encumbrance
upon any property or assets of such Adviser pursuant to the terms of
any agreement or instrument to which such Adviser is a party or by
which such Adviser may be bound or to which any of the property or
assets of such Adviser is subject;
(f) The description of the Adviser and its business in the
Preliminary Prospectus and the Prospectus complies in all material
respects with all requirements of the Act, the 1940 Act and the Rules
and Regulations.
(g) (A) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the performance by such Adviser
of its obligations under the Underwriting Agreement, the Advisory
Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreements
or the Additional Compensation Agreements, except such as have been
already obtained under the 1933 Act, the 1940 Act, the Rules and
Regulations, the rules and regulations of the NASD and the NYSE and
such as may be required under state securities laws.
(h) To the best of such counsel's knowledge after reasonable
inquiry, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Adviser is a party,
or to which the property of the Adviser is subject, before or brought
by any court or governmental body, domestic or foreign, which might
reasonably be expected to result in any Material Adverse Effect,
materially and adversely affect the properties or assets of the
Adviser or materially impair or adversely affect the ability of the
Adviser to function as an investment adviser or perform its
obligations under the Advisory Agreement or the Sub-Advisory
Agreement, or which is required to be disclosed in the Registration
Statement, the Preliminary Prospectus and the Prospectus but are not
disclosed as required;
(i) To the best of such counsel's knowledge, after reasonable
inquiry, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement, or to be filed
as exhibits thereto, other than those
C-2
described or referred to therein or filed or incorporated by reference
as exhibits thereto, and the descriptions thereof or references
thereto are correct in all respects; and
(j) To the best of such counsel's knowledge, after reasonable
inquiry, the Adviser has all material permits, licenses, franchises
and authorizations of governmental or regulatory authorities as are
necessary to own its properties and to conduct its business in the
manner described in the Prospectus (and any amendment or supplement
thereto), and to perform its obligations under the Advisory Agreement
and the Sub-Advisory Agreement.
Nothing has come to such counsel's attention that would lead it to
believe that:
(1) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or
(2) the Preliminary Prospectus, as of the Applicable Time, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading, or
(3) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and schedules
and any other financial or statistical information or calculations
contained therein or incorporated therein by reference and other than any
exhibits, schedules or appendices included or incorporated by reference
therein, as to which such counsel expresses no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York and The Commonwealth of Massachusetts, the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Preliminary Prospectus and the
Prospectus shall also include any supplements thereto at the Closing Date.
C-3
EXHIBIT D
FORM OF OPINION OF SUBADVISER'S COUNSEL
(a) The Subadviser is duly incorporated and validly existing in
good standing as a corporation under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus.
The Subadviser is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure to so
register and qualify does not have a material adverse effect on the
ability of the Subadvisor to perform its obligations under the
Underwriting Agreement and the Sub-Advisory Agreement;
(b) The Subadviser is duly registered with the Commission as an
investment adviser under the Advisers Act, and is not prohibited by
the Advisers Act, the 1940 Act or the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under
the Underwriting Agreement, the Sub-Advisory Agreement; and, to the
best of such counsel's knowledge after reasonable inquiry, there does
not exist any proceeding which should reasonably be expected to
adversely affect the registration of the Subadviser with the
Commission;
(c) The Subadviser has corporate power and authority to enter
into the Underwriting Agreement and the Sub-Advisory Agreement, and
the Underwriting Agreement and the Sub-Advisory Agreement have been
duly authorized, executed and delivered by the Subadviser, and each of
the Underwriting Agreement and the Sub-Advisory Agreement is a valid
and legally binding agreement of the Subadviser, enforceable against
the Subadviser in accordance with its terms except as rights to
indemnity and contribution in the Underwriting Agreement or the
Sub-Advisory Agreement may be limited by federal or state securities
laws or principles of public policy and subject to the qualification
that the enforceability of the Subadviser's obligations thereunder may
be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general principles of equity
(whether enforcement is considered in a proceeding in equity or at
law);
(d) The Sub-Advisory Agreement to which the Subadviser is a party
complies in all material respects with all applicable provisions of
the Advisers Act, the 1940 Act and the Advisers Act Rules and
Regulations and the 1940 Act Rules and Regulations.
(e) Neither the execution, delivery or performance of the
Underwriting Agreement or the Sub-Advisory Agreement nor the
consummation by the Subadviser of the transactions therein
contemplated (i) conflicts with or will conflict with or constitutes
or will constitute a breach of the charter or bylaws of
D-1
the Subadviser, (ii) conflicts with or will conflict with or
constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which such
Subadviser is a party or by which it or any of its properties may be
bound or (iii) violates or will violate any statute, law, regulation
or filing or judgment, injunction, order or decree applicable to such
Subadviser or any of its properties or will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of such Subadviser pursuant to the terms of any
agreement or instrument to which such Subadviser is a party or by
which such Subadviser may be bound or to which any of the property or
assets of such Subadviser is subject;
(f) The description of the Subadviser and its business in the
Preliminary Prospectus and the Prospectus complies in all material
respects with all requirements of the Act, the 1940 Act and the Rules
and Regulations.
(g) (A) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the performance by such
Subadviser of its obligations under the Underwriting Agreement or the
Sub-Advisory Agreement, except such as have been already obtained
under the 1933 Act, the 1940 Act, the Rules and Regulations, the rules
and regulations of the NASD and the NYSE and such as may be required
under state securities laws.
(h) To the best of such counsel's knowledge after reasonable
inquiry, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Subadviser is a
party, or to which the property of the Subadviser is subject, before
or brought by any court or governmental body, domestic or foreign,
which might reasonably be expected to result in any Material Adverse
Effect, materially and adversely affect the properties or assets of
the Subadviser or materially impair or adversely affect the ability of
the Subadviser to function as an investment adviser or perform its
obligations under the Sub-Advisory Agreement, or which is required to
be disclosed in the Registration Statement, the Preliminary Prospectus
and the Prospectus but are not disclosed as required;
(i) To the best of such counsel's knowledge, after reasonable
inquiry, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments relating to the
Subadviser required to be described or referred to in the Registration
Statement, or to be filed as exhibits thereto, other than those
described or referred to therein or filed or incorporated by reference
as exhibits thereto, and the descriptions thereof or references
thereto are correct in all respects; and perform its obligations under
the Sub-Advisory Agreement.
(j) To the best of such counsel's knowledge, after reasonable
inquiry, the Subadviser has all material permits, licenses, franchises
and authorizations of governmental or regulatory authorities as are
necessary to own its properties and
D-2
to conduct its business in the manner described in the Preliminary
Prospectus and the Prospectus (and any amendment or supplement
thereto), and to perform its obligations under the Sub-Advisory
Agreement.
Nothing has come to such counsel's attention that would lead it to believe that:
(1) the Registration Statement, at the time the Registration Statement
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or
(2) the Preliminary Prospectus, as of the Applicable Time, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading, or
(3) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and schedules
and any other financial or statistical information or calculations
contained therein or incorporated therein by reference and other than any
exhibits, schedules or appendices included or incorporated by reference
therein, as to which such counsel expresses no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York and The Commonwealth of Massachusetts, the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Preliminary Prospectus and the
Prospectus shall also include any supplements thereto at the Closing Date.
D-3
EXHIBIT E
PRICE-RELATED INFORMATION
XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY INCOME FUND
Public offering price: $20.00 per share
Underwriting discounts and commissions: $_______ per share
Proceeds, before expenses to the Fund: $_______ per share
Shares offered:
Over-allotment option:
E-1